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May 13, 2007

Taking stock of prison nation

This commentary in the Huntsville Times provides a global perspective on the affinity for incarceration in the United States. Here are highlights:

Alabama's rate puts Pakistan, China and even Libya to shame. Myths have a way of hiding what we don't want to see. Americans, for example, are quick to charge third world dictators with abusive prison policies. But prison incarceration rates tell a different story. Recent reports show that 45 of the 50 democratically elected state governments in the US, including Alabama, imprison their citizens at a faster pace than any of the foreign governments headed by dictators.

Rulers in Libya, Zimbabwe, Saudi Arabia, China and Pakistan made Parade Magazine's 2005 world's worst dictators list. And the National Council on Crime and Delinquency, located in Oakland, Calif., has issued a report titled, "US Rates of Incarceration: A Global Perspective," showing the incarceration rates for these five dictatorships — the number of persons in prison for every 100,000 population — ranging from a low of 57 in Pakistan to a high of 207 in Libya.

By comparison, prison policies made in Montgomery locked up 591 state citizens for every 100,000 population in 2005. In other words, Alabama imprisons its people at a rate almost three times faster than Muammar al-Qaddafi's Libya and 10 times faster than Pakistan under Gen. Pervez Musharraf. If inmates held in local jails in Alabama were added in, the spread would be even wider.

Only five states — Maine, New Hampshire, Rhode Island, Minnesota and North Dakota — have prison incarceration rates less harsh than Libya's. All other states enforce prison policies that put dictators around the world to shame, including more than 600 inmates per 100,000 population in Louisiana, Mississippi, Oklahoma and Texas.

The report by the National Council on Crime and Delinquency referenced in this article can be accessed at this link.

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Is this an Onion article? Did a news organization actually cite to Parade Magazine and a "world's worst dictators" list? Stay tuned for citation to Us Weekly and VH1's "100 most awesomely bad political economies."

Come on, Professor Berman. Surely you can link to news reports with a little bit more credibility.

Posted by: bill | May 14, 2007 10:20:19 AM

Most crucially omitted is why people are imprisoned in these various countries. Are they locked up for political crimes, or for actually violating regular, ordinary laws?

Also, what alternative forms of punishment do these other countries use in place of prisons, if any? Saudi Arabia may not imprison that many people, but I'm told they chop off the hands of plenty of thieves, which serves to deter theft even better than the threat of a couple of years in the state pen.

Finally, and I'll have to look into the study more to see if it addresses this, but how solid are those numbers? I know that when I was looking at juvenile justice reforms, one state kept being cited as a model, because the state system had so many alternative treatment facilities and no bad old juvenile "prisons." Then when we asked around, we found that the state itself truly did not have any such nasty places... but 2 of their major cities each had juvenile prisons which held, all total, about 200 (adjudicated delinquent) kids, a very big difference. My state's system, on the other hand, has only kids awaiting trial in local detention facilities, not kids already adjudicated. Our state wouldn't have looked nearly as bad in comparison, had those 200 kids in their local system been counted, as they should have been. Could there be a similar effect going on here?

Just how good is our Chinese incarceration data? America keeps very close track of who we have imprisoned. I'm not sure that I trust that other governments pay as close attention.

I don't mean to suggest that there is no problem. Obviously, we incarcerate a lot of people, and we need to find a way to reduce that.

The study notes that crime rates only seem to account for a small portion of the dramatic rise in incarceration. The usual critics of our high incarceration rates typically suggest that the war on drugs and the "get tough on crime" mentality that politicians adopted in the mid-80s are responsible for an overreaction.

But I wonder if another cause might be the increasing strictures placed on police officers during the 1950s, 60s, and 70s. In the past, if you had a local trouble-maker, the cops might work him over a bit, then let him go. Not just in a "beat 'im up" sense, but in a proactive, "this guy's not breaking the law right now, but he looks shifty, so lets harass him a bit," sense. Civil rights lawsuits, citizen complaint review panels, and other structural changes in our system prevent most of that sort of thing now.

The same issues which kept anybody from acting against the Virginia Tech killer before he actually killed those people keep police from "nipping it in the bud," stopping crime before it happens with targeted interventions of one sort or another. Unable to change those policies, the legislatures changed the only policy they could, length of incarceration.

To the above commentator seeking to differentiate between “political” and “regular” crimes. Let me make a somewhat unconventional argument: it does matter. Societies choose to incriminate people based upon their deviation from norms or the injury those people cause to certain-agreed-upon values.

In the US, most people in jail can be categories into one of the following categories that correspond to our values: 1) they injured a person; 2) they injured or stole property; or 3) they were somehow involved with the process of having a good time via certain (but not all) drugs. There is generally no defense for economic necessity except in extreme cases. The law regarding drugs and justification is developing. Strangely, Americans do seem to think that injuring a person is justified under many circumstances.

In other countries, the values might be different. Namely: Political and religious obedience may be more valued than economic obedience. In the US, by our constitution we specifically chose to downplay the importance of those values. The result is that people that express dissenting views (i.e. Republicans) or certain religions (not sure who is in the majority now) don’t end up in jail, but people that use certain drugs do.

Cynically, many people say that the lawyers (including prosecutors) are in the business of “prosecuting poverty.” Americans don’t see any value in being poor, and we generally regard the poor as lazy, stupid, and better off in jail. So, whatever behavior they engage in is more easily construed as breaking the law. (I.e. when rich people drink outside it is at an outdoor concert or a sidewalk café. When poor people do it, it is on a stoop, and lands them in jail, branding them a criminal.)

But, things don’t have to be this way. We could simply decide that different values that we decide are more important, and lower the prison population.

S.cotus... my experience as a prosecutor, pardon attorney, and criminal justice policy advisor to the governor of Louisiana (with one of the highest rates of incarceration in the nation) is that only a small number of people are in jail simply for "having a good time via certain drugs," and I feel safe in saying that almost nobody is incarcerated, for longer than a weekend at least, for "drinking on the stoop."

While I was in the governor's office, we changed our law to allow for hearings to provide early parole or sentence commutation for non-violent inmates with relatively clean records, who posed little risk of reoffending. We created several hearing panels and looked, looked very hard, for people to let out of jail. We found very few people who ought to be. Most of the inmates in prison for "non-violent drug offenses" had significant instances of violence on their record. Usually, the prosecutor had gone for a drug charge in order to get the violent guy off the streets, because it was easier to prove. When gang members shoot or beat each other, proving the violence can be kind of hard, what with witness intimidation and all. The drugs are an easy conviction, though, so the prosecutor went with what would work. Those people with mostly drug arrests and thefts on their sheet usually had A LOT of such arrests and convictions which accumulated before the offender was FINALLY sent to prison for a period of time long enough to make a difference.

You said, “feel safe in saying that almost nobody is incarcerated, for longer than a weekend at least, for "drinking on the stoop.” The beauty of this argument is that because so many people are incarcerated (even if for short periods of time), you are still stuck with the fact that society has chosen to prosecute some preferences.

Now, I do agree with you that most people in jail for long sentences are not casual drug users. (Though some states have egregious records putting people in jail for quite some time.) However, since drug dealers (even violent ones) are simply serving society’s need to have a good time, we are back in the same place. We value certain kinds of good times over others, and we will put whoever is connected to the disfavored kinds of good times in jail.

While I am sure that you are a great person and an ethical lawyer, your assurances that drug offenses are usually an “excuse” to get an otherwise bad person off the streets essentially are somewhat more disturbing. You are essentially arguing that prosecutors routinely use drug statutes to prosecute people for other (equally disfavored) behavior. Granted, I probably think what you are doing is good, but by calling such prosecutions “drug” prosecutions you probably are depriving the courts (and the jury) of the opportunity to directly assert their values.

Finally, while you created “panels” to evaluate drug criminals, such panels do not really have any independence, and are looking at people that have already been condemned as not sharing the “right” kind of values. So, while I am sure that you operated in good faith, such panels are hardly akin to the kind of due process and jury trial procedures that we claim to be a “value” in the US.

Well, courts and juries are not their to "assert their values" but to apply the values we've chosen, as a society, to enact through legislation. The courts have expressed their value, that we won't convict someone of a crime if the witnesses are too terrified to testify against the criminal, so prosecutors have quite rationally chosen to prosecute crimes which our values for due process allow us to convict on.

If you want to assert that you have different values and favor release of violent criminals whose violence occurred only in the course of operating a drug business, feel free. I don't agree, as you might suspect. Violent drug dealers have destroyed huge swaths of some of our once most vibrant communities.

I understand the argument that legalizing drugs will reduce crime (prohibition, etc.). But I disagree with it. But that's an occasion for another day.

In the meantime, I will continue to point out the plain truth that few people are in jail because they are, in fact, non-violent drug offenders. The statistics on which such claims rely are erroneous for the reasons I have given. Supporters of legalization need to make other arguments for it.

As far as the study, Religious Obedience or values can impact the incarceration rate. In Colorado there was a case where 3 Saudi students killed a fellow student for drugs.2 made it out of the country, but the 3rd didnt, and received LWOP in Colorado after being convicted.The parents of the victim eventually forgave them all so the 2 were released, so you have 3 convicted of murder for the same crime, but different sentences because of religious values.In Dubai you can get 20 years taken off your sentence for memorizing 100% of the Qur'an.
http://www.quran.gov.ae/content/view/52/47/lang,english/

Posted by: Mark | May 14, 2007 6:13:45 PM

Pat, Don’t get me wrong. I think that the percentage of Americans in jail is too low. While I trust that you are sincere in your assertions about the nature of people doing time in jail, I don’t know how much proof there really is for it. You seem confident that the executive can determine which are the “real” drug offenders, and which are the non-violent ones. Some say that juries should determine whether the elements of a crime are present, and some say that juries should even determine what sorts of aggravating factors are present. Others say that these decisions should be left to judges, and you seem to say that these decisions should be left to the executive and we should just trust the executive. Even if juries are not accountable, they are drawn more or less randomly, so it is hard to argue that they have the same vested interests and values that people that work for the government do.

But again, I guess if I had a choice between people with law degrees deciding who stays in jail and randomly selected people, some of which have not even been to college making that decision, I would choose the folks law degrees. I think that a college degree and two years of graduate school should be the minimum for jury service, because I don’t think that uneducated people really know what is what. Strangely many prosecutors disagree with me. Anyway, I am glad that you are out there protecting me from uneducated juries of the lower social classes with your executive discretion and review boards.

Juries, even if we instruct them to “apply the law” apply their own values. Their views of what is “reasonable” are shaped by their life experiences. Their views of police behaviors are shaped by their relations with the police. While we love to rail against jury nullification, we all know that it exists. Juries will, for example in New Orleans, perhaps be less likely to trust cops, knowing that the police and prosecutors are notoriously corrupt. (I don’t know if they really are, but this is the common perception, and New Orleans has done nothing to change the common view.) If prosecutors such as yourself make these decisions we won’t have to fear a juror that has been beaten up by a cop acquitting someone of drug possession who really did something far worse.

Mark, How many people have memorized 100% of the Koran? Just wondering.

Interesting,According to the website, since 2002 of the 2379 inmates that have enrolled in the program only 9 have memorized 100%.Only 665 have memorized at least the minimum of 3 parts which mitigates 6 months.

Posted by: Mark | May 14, 2007 9:38:24 PM

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